People v Malaj

People v Malaj 2010 NY Slip Op 00381 [69 AD3d 487] January 19, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent,
v
Prela Malaj, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), for respondent.

Judgment, Supreme Court, New York County (Brenda S. Soloff, J.), rendered November 10, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Defendant's claim that he was improperly sentenced without an evidentiary hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea (see People v Cooper, 21 AD3d 836 [2005], lv denied 6 NY3d 774 [2006]), and we decline to review it in the interest of justice. As an alternate holding, we find that the court properly sentenced defendant to a term of incarceration since he failed to comply with the terms of the plea agreement. The court's decision was not based solely on a disputed hearsay allegation (compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]), but on defendant's well-documented failure to successfully complete a drug treatment program, along with the court's rejection of his excuses (see e.g. People v Redwood, 41 AD3d 275 [2007], lv denied 9 NY3d 880 [2007]). There was no factual dispute requiring the taking of testimony (see People v Valencia, 3 NY3d 714 [2004]). Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ.